The courts have upheld that Doctrine of Substantive Legitimate Expectation (SLE) has to be “the sanction of law or custom or an established procedure followed in regular and natural sequence”.[1] Chintan Chandrachud calls this doctrine “illusionary” and claims that the doctrine has “evolved in a way that makes it almost impossible for a claim to succeed.”
The courts may have called it a part of our law however, have shown immense resistance towards it and disregarded rise of instances where this doctrine could have been claimed by the person. The courts have claimed that such expectation could not simply be a ‘a wish, a desire or a hope’ or a mere anticipation, but solely “the sanction of law or custom or an established procedure followed in regular and natural sequence”.[2] Such an explanation to establish ex ante legal rights would make it impossible for the claimant to successfully establish a claim without using the “basis of illegality” in situations.
Moreover, it is observed that the court claims that substantive legitimate expectations has “no role to play” in cases where the public authority has acted in public interest unless there has been an abuse of power.[3] However, a lower threshold for public interest is used by courts to ensure that the discretionary powers of the public authority are not completed snatched. Moreover, in Ram Pravesh Singh v State of Bihar,[4] the court claimed that legitimate expectation can be negated if reason of “public interest, change in policy, conduct of the expectant or valid or bonafide reason is given by the decision-maker.” Preference to not ‘usurp the discretion of the public authority’ is such that a differential standard of judicial review is used by the court, and a lower threshold for the above exceptions is kept.
Additionally, in Punjab Communications v Union of India,[5] the court upheld that rather than using the proportionality review, SLE will be tested on the grounds of perversity or irrationality in accordance with the Wednesbury principles. It further stated that the standard would be that of “light-touch unreasonableness”, which placed the onus on the claimant to prove “something overwhelming” happened for the court to intervene in the public authority’s decision rather than taking it at face value. Furthermore, in Union of India v International Trading Co.[6], the court stated that ‘pure’ Wednesbury unreasonableness was to be applied in SLE cases, i.e., that the state authority should get maximum room when it comes to devising of policy and that the court isn’t institutionally competent to make policies and shall leave this task to the executive.[7] Such establishment of ex ante rights makes it impossible for claims under this to succeed, making the doctrine “illusionary”.[8]
[1] Bannari Amman Sugars v CTO [2005] 1 SCC 625.
[3] Sethi Auto Service v Delhi Development Authority [2009] AIR 2009 SC 904.
[4] Ram Pravesh Singh v State of Bihar [2006] 8 SCC 381.
[5] Punjab Communications v Union of India [1999] AIR 1999 SC 1801.
[6] Union of India v International Trading Co. [2003] AIR 2003 SC 3983.
[7] Chintan Chandrachud, ‘The (Fictitious) Doctrine of Substantive Legitimate Expectations in India’.
[8] MP Jain & SN Jain, ‘Principle of Administrative Law 7th Edition’ [2013].
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